California’s Age of Consent
Some of the questions our criminal defense lawyers hear in regards to the age of consent in California, include:
- Can my 18-year-old date a 16-year-old?
- Can teenagers have sex if they are dating and both consent to the sexual contact?
- Can an 18-year-old date a 17-year-old if they are both in the same grade?
When one or both of the parties are under the age of consent, things can get complicated and no parent wants to see their child labelled a sex offender before they even leave home. It is important to understand what the consequences may be for minors who engage in sexual activity.
What Is California’s Age of Consent?
The age of consent in California is 18. This is the age when the law considers someone to make an informed decision about sex, knowing the risks of such activity. Before this, the law thinks that the minor does not have the capacity to make decisions about sexual contact. Therefore, even if both parties consent to sex, if they are under the age of 18, the law does not recognize their consent.
Are There Exceptions to California’s Age of Consent?
The only exception to the age of consent is if the parties are married. Even if one of the spouses is a minor, they can engage in sexual contact with their spouse.
Unlike other states, like Texas, there is no Romeo and Juliet exception. The Romeo and Juliet exception refers to the allowance for two teens to engage in consensual sexual conduct as long as both are over the age of 14 and close in age. Neither teen can have a sexual conviction to use this exception as a defense. However, California is strict on the age of consent, even if both parties are under the age of consent. They both risk being charged with sex with a minor.
What If The Minor Is 17 and the Adult Is 18?
Even if both teenagers are in the same grade, but one is 18, and one is 17, it is illegal. The 17-year-old is not able to give their lawful consent, even if they consent to the sexual activity. The 18-year-old could be charged with statutory rape.
What Are the Penalties For Having Sex With a Minor in California?
The California Penal Code 261.5 is the law that will be used to prosecute someone 18 years or older charged with having sex with a minor. The law defines sex as penetration of the genitalia by a penis, no matter if ejaculation occurs or if there is full penetration.
The penalty will be determined by the circumstances of the case. The primary deciding factor will be the difference in age between the people involved.
3 Year Age Difference or Less
If the age difference is 3 years or less, then the adult will be charged with a misdeamor. The penalty will be fines, probation, and up to 12 months in county jail.
More Than 3 Years Age Difference
If there is more than 3 years of difference between the age of the minor and the adult, then the crime could be charged as either a minor or a felony, depending on the circumstances. The court will consider the facts and evidence, including:
- The age difference
- Whether consent was given
- If the adult has a criminal record
- If the adult held a position of power over the minor
As a misdemeanor, the penalty may be fines, probation, and up to 12 months in county jail. As a felony, the penalty may be fines, probation, and 1-3 years in county jail. If the adult has a position of power, consent was not given, or if the minor is injured, then the penalties may be higher.
Consent As a Legal Defense
Because California law sees minors as unable to give consent, consent is not a valid legal defense for a statutory rape charge. However, the court may factor consent into the penalty that they give for the crime. Consult a California criminal defense lawyer to discuss the strength of your case and see if there are ways to either fight the conviction or reduce the penalties you receive.
Sex between teenagers or between an adult and a minor is a risky business. A bad breakup or concerned parents can result in one of the parties being charged with statutory rape or sex with a minor. Our California criminal defense lawyers understand that a lot of teenagers today engage in sexual activity before they reach the age of consent, but we recommend parents discuss the risks with their teenagers, including the legal risks.